State v. Moore , 2022 Ohio 947 ( 2022 )

[Cite as State v. Moore, 2022-Ohio-947.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 110517
v. :
AMBER NICOLE MOORE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 24, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-643666-A and CR-19-643726-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Connor Davin, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
LISA B. FORBES, J.:
Appellant, Amber Nicole Moore (“Moore”) appeals the trial court’s
order sentencing her to 12 months in prison. After reviewing the facts of the case
and pertinent law, we affirm.
I. Facts and Procedural History
On December 3, 2019, Moore pled guilty to attempted prohibition
against altering substance to increase concentration, a misdemeanor of the fourth
degree in violation of R.C. 2923.02 and 3719.161, and theft, a felony of the fifth
degree in violation of R.C. 2913.02(A)(1).
While out on bond and awaiting her sentencing hearing, Moore
absconded. A capias was issued for her arrest on December 30, 2019. Moore was
taken into custody following a traffic stop on April 16, 2021.
A sentencing hearing was held on April 22, 2021. At the hearing,
Moore and her attorney addressed the court. According to Moore, between the time
she absconded and her eventual arrest she began living a sober lifestyle, attained
employment, was eligible for a promotion, and had developed a relationship with
her child. Moore’s attorney notified the court that Moore “recognizes that [it] was
poor judgment” not to report for sentencing originally, but that she believed Moore
“was afraid of * * * going to jail [for] these cases.” Further, Moore’s attorney
highlighted the fact that Moore had obtained employment and wished to be able to
continue working and to pay restitution to the victims of the theft. After hearing
these statements, the trial court sentenced Moore to 60 days in jail for the attempted
prohibition against altering substance conviction and 12 months in prison for the
theft conviction. Both sentences were ordered to be served concurrently for a total
term of 12 months in prison. It is from this sentence that Moore appeals.
II. Law and Analysis
A. Maximum Sentences
In her first assignment of error, Moore argues that the “trial court
erred when it imposed the maximum sentence without support in the record for the
requisite statutory findings under R.C. 2929.11, 2929.12 and 2929.14.” We disagree.
Our review of felony sentencing is governed by R.C. 2953.08(G)(2),
which states:
The appellate court may take any action authorized by this division if it
clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)
of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court
to modify or vacate a sentence based on its view that the sentence is not supported
by the record under R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. Additionally,
if the sentence is within the statutory range for the offense and the trial
court considered both the purposes and principles of felony sentencing
in R.C. 2929.11 and the seriousness and recidivism factors in
R.C. 2929.12, the court’s imposition of any prison term for a felony
conviction is not contrary to law.
State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 7.
While trial courts are required to consider both R.C. 2929.11 and
2929.12 before imposing a prison sentence, they are not required to make specific
findings under any of those considerations. Jones at ¶ 20, citing State v. Wilson,
129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88 Ohio
St.3d 208, 724 N.E.2d 793 (2000). “Indeed, consideration of the factors is
presumed unless the defendant affirmatively shows otherwise.” Phillips at ¶ 8,
citing State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th Dist.).
At the outset, we note that in her first assignment of error, Moore
argues that there was no support in the record “for the requisite statutory findings
under * * * [R.C.] 2929.14.” However, in this case, the trial court was not required
to make any findings under R.C. 2929.14. As noted, under R.C. 2953.08(G)(2),
appellate court review is limited to whether the record supports a trial court’s
findings under R.C. 2929.14(B)(2)(e) and (C)(4). R.C. 2929.14(B)(2)(e) relates to
an offender who has been convicted of a repeat violent offender specification, and
R.C. 2929.14(C)(4) concerns consecutive sentences. Because Moore was not
convicted of a repeat violent offender specification nor was she sentenced to
consecutive sentences, the trial court in this case was not required to make these
statutory findings.
In essence, Moore seeks to have her sentence modified by this court
asserting that “there is clear and convincing evidence that the trial court’s findings
[under R.C. 2929.11 and 2929.12] were not supported by the record, therefore a
maximum sentence cannot be sustained.” However, the trial court was not required
to make findings under those statutes, and Moore offers no evidence to rebut the
presumption that the trial court considered the relevant sentencing factors under
R.C. 2929.11 and 2929.12. At sentencing, the trial court stated it had “reviewed the
purposes and principals of the Ohio Revised Code section regarding sentencing and
significantly looked at [Moore’s] record which * * * is deplorable.” The court
explained that it could not “grant [Moore] community control sanctions. It would
be inappropriate, given [her] record and [her] failure to appear.”
Further, in its journal entry, the court stated that it “considered all
required factors of the law. The court finds that prison is consistent with the purpose
of R.C. 2929.11.” This court has previously recognized that those statements alone
are sufficient to find that the court considered the purposes and principles of felony
sentencing in R.C. 2929.11 and the seriousness and recidivism factors in
R.C. 2929.12. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, at ¶ 8
(finding that a sentencing entry that states the court “considered all required factors
of law” satisfied the court’s statutory requirements). Therefore, we find that Moore
has not affirmatively demonstrated that the trial court did not consider all of the
required sentencing factors under R.C. 2929.11 and 2929.12.
Accordingly, Moore’s first assignment of error is overruled.
B. Ineffective Assistance of Counsel
In her second assignment of error, Moore argues that she was denied
the effective assistance of counsel. We disagree.
To succeed on a claim of ineffective assistance of counsel, a defendant
must establish that his or her attorney’s performance was deficient, and that the
defendant was prejudiced by the deficient performance. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, a court need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. To show
that he or she was prejudiced, the defendant must prove that, but for counsel’s
errors, the result of a trial would have been different. State v. Williams, 8th Dist.
Cuyahoga No. 66864, 1995 Ohio App. LEXIS 2847, 16 (July 5, 1995), citing State v.
Mills, 62 Ohio St.3d 357, 376, 582 N.E.2d 972 (1992). The object of an
ineffectiveness claim is not to grade counsel’s performance. Id. at 697. See also
State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989).
Moore argues that her trial counsel was deficient for failing “to argue
some mitigation of sentence.” We need not decide whether Moore’s trial counsel
was deficient because Moore cannot demonstrate prejudice.
A review of the record demonstrates that at sentencing, Moore’s trial
counsel notified the court that between the time of Moore’s plea and her ultimate
arrest Moore had been working full time in addition to being a mother. Additionally,
in an effort to explain why Moore absconded, her attorney informed the trial court
that prior to sentencing, Moore was required to report to multiple different
probation officers, “it got overbearing for her to try to work and report to three
different authorities,” and “she was afraid of being sentenced[.]”
Further, at the sentencing hearing, Moore addressed the court and
presented all of the mitigating circumstances she argues her trial counsel failed to
raise. Therefore, because the trial court had the benefit of hearing Moore’s alleged
mitigating factors from both her counsel and Moore herself prior to imposing her
sentence, Moore cannot demonstrate that the outcome would have been different
but for the alleged error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN T. GALLAGHER, J., CONCUR